Sick-Leave Policies for Flu Season and Beyond

By Pamela Babcock
1/31/2013

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Despite reminders and warnings about limiting exposure to others when contagious, many employees insist on reporting to work sick. Organizations should have a well-designed sick-leave policy to minimize the impact that the cold-and-flu season can have on the workplace.

“Any sizable company should give serious consideration to having a sick-leave policy to address times like these where a number of employees may justifiably need to be out on leave,” said David Kurtz, a partner in Edwards Wildman's Labor & Employment group in Boston, to SHRM Online.

Such policies should be developed well in advance in partnership with HR and front-line managers. Senior management buy-in is also essential to ensure the policy is “something that works for the company and works for the culture,” Kurtz added.

Many Employees Have No Paid Sick Leave

According to the U.S. Bureau of Labor Statistics’ 2011 American Time Use Survey, 59 percent of U.S. workers had some form of paid leave. Along with paid holidays, sick leave and vacation are the most common types of paid leave.

Some state- or city-specific laws require employers to provide paid sick leave, including those in Connecticut, San Francisco and Seattle. However, many part-time and nonexempt hourly workers have no paid sick leave, which can increase the likelihood that employees will report to work sick. That’s a big problem, experts say, particularly when influenza hits.

“It’s not good for the employee’s health. It’s also potentially not good for the customers, other employers and visitors who may come in contact with that individual,” Kurtz said.

“No policy should ever be ignorant of the realities of the workplace,” observed Howard Mavity, a partner at Fisher & Phillips in Atlanta and co-chairman of the firm’s Workplace Safety and Catastrophe Management Practice Group.

Mavity suggested that companies modify their sick-leave policies temporarily if an influenza outbreak strikes their staff. He noted that some employers have added paid time off as a “discretionary, one-time thing,” to ensure sick employees stay home, rather than risk shutting down the entire operation.

“They’ve done a very straightforward numerical analysis and have found that it’s cheaper for people to take time off than get the workplace sick,” Mavity told SHRM Online.

But, he added, organizations that decide to do this should clarify in writing the circumstances that will trigger the availability of the leave, and ensure that no long-term contractual obligations will be generated, such as under collective bargaining agreements.

Sick-Leave-Policy Design Guidance

Companies should be prepared to address a host of issues in a sick-leave policy, including the following:

How will the company track abuse? Will a physician’s note be required, and if so, after how many days? Kurtz cautioned not to request the reason for the absence, since that can lead to potential Americans with Disabilities Act (ADA) claims. The note should state the date the employee was seen, that her absence was “medically necessary” and the date the worker is clear to return, he said.

What if the employee runs out of paid sick leave? Can he use vacation time, take unpaid medical leave or borrow from next year’s leave?

Does the Family and Medical Leave Act or other leave laws or benefits apply? An employee with a serious health condition or one who must care for a family member may be entitled to up to 12 weeks of unpaid leave, Kurtz said.

Are there accommodation issues? If it’s a serious flu strain and somebody is out for a long time, it could be deemed a disability, Kurtz said.

What about workers’ compensation and disability insurance issues? If an employee catches the flu on the job, she might be entitled to workers’ compensation, he noted.

Wage and hour issues might also need to be considered, as allowing employees to work remotely can trigger Fair Labor Standards Act (FLSA) problems when it comes to measuring and tracking time worked by nonexempt employees, Kurtz said.

Chuck Lamonica, a principal in Mercer’s Philadelphia office, said sick-leave policies should be linked to the company’s attendance policy to guard against abuses. He recommends that the human resources, benefits and legal departments work with the hourly-employee population and managers in the field to build consensus around the organization’s sick-leave policy.

Other Considerations

While an employer can ask about an employee’s health only when the inquiry is “job-related and consistent with business necessity,” Kurtz noted that the Equal Employment Opportunity Commission, in connection with the 2009 H1N1 flu pandemic, ruled that employers can ask those exhibiting flulike symptoms about their health and request that they go home, without giving rise to claims under the ADA.

“You have a general duty to maintain a healthy workplace, and if you see somebody who is sick, you should take action,” Kurtz said.

In addition to requiring or encouraging flu vaccines and stepping up sanitation procedures, employers should do a risk assessment and consider options like increasing space between workers in cubicles, cutting back on travel and having more meetings remotely via the telephone or Internet, experts suggested.

Lamonica advised that companies revisit perfect-attendance awards, if offered, since this kind of recognition may increase the likelihood that sick employees will report to work.

Training supervisors about sick leave and the impact it can have on the operations is important, as well. “We don’t see tons of training around sick time and how to deal with that,” Lamonica said. “It’s an uncomfortable situation, but if someone is coughing or sick at work, it becomes the supervisor’s responsibility to talk to them. Many employers are very gun-shy about what they can and can’t do.”

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